Dr. David Fennelly:

I thank the Senators and Deputy Duffy for all those questions. They really get to the heart of the matter. Regarding the enforcement of an award, I refer Deputies and Senators to Article 8.41. I agree with Dr. Suttle that there is very limited scope for challenging an award. If it were made to be enforced under the New York Convention, there is some possibility of challenging it on public policy grounds, but even then it on a limited basis, and our Arbitration Act gives effect to those conventions as a matter of Irish law.

Senator Martin's question about whether Crotty lives on is the big question and it is a difficult one. I do not think that Pringle puts Crotty to sleep but it puts serious brakes on the implications of Crotty. It confirms that the courts will intervene only in limited cases. Crotty lives on. It will continue to be relevant when it comes to major revisions of the European treaties and possibly other treaties such as the one about which we are talking. Whether that is so is ultimately a matter the courts will have to pronounce upon. The statement of the European Association of Judges was given before the European Court of Justice pronounced on it and was primarily on EU law issues. It has to be understood in the light of the subsequent Opinion 1/17. It is important to emphasise, as I do in the paper, that the question of whether there should be a referendum is not just a matter for the courts. Members of the Dáil can table a Bill to amend the Constitution if they consider it is appropriate and given the implications of a particular international agreement and its legitimacy. It is important the political power in that regard is vested with the Oireachtas.

On Senator Higgins's question about the tribunal and the open-ended nature of the commitment under CETA, it is true that the EU and member states would have to give 180 days of notice to terminate the agreement. We are locked in because it is a mixed agreement with respect to the EU. There is a sunset clause for the investor protection elements. That is a reflection of the nature of investment protection. Investors come and they stay for a certain time, so it is part of the legal certainty this agreement purports to give. It is a limitation. Whether or not it is so open-ended that it would constitute a transfer of powers under the Constitution that would require a referendum is more difficult to determine. Many international agreements involve limitations of this kind. The court would have to assess that in the round.

Regarding whether the right to compensation would require legislation, it is a reason why the role of the Dáil is important in approving this, since it could impose a charge on public funds. It goes back to the point about political accountability resting in the Dáil. The standard of fair and equitable treatment is well-established in international law. It is organic and as Dr. Suttle and Dr. Ankersmit said, while one does not know what precise interpretation that CETA tribunal might give, because of the provisions I have referred to, it would constitute legislation within the meaning of the Constitution, with regard to bringing into play the principles and policies test. It may have an indirect effect, which is something we have heard about in the context of this chilling effect.

On international dispute mechanisms, Dr. Suttle is right that the decisions of the European Court of Human Rights are not directly and automatically binding within our legal system, but Ireland as a State is under international obligations to give effect to those decisions and to the decisions of bodies such as the Aarhus Convention Compliance Committee as well as more court-like bodies of the kind we are talking about here. Ireland has been actively involved in these different mechanisms. Whether this agreement is so exceptional as to require the vote of the people, it is before the courts and will require careful consideration by the courts. Whether Pringle sets a high threshold, going back to Senator Martin's question, Crotty lives on, so we will have to wait to see how the courts ultimately pronounce on that issue. I thank the committee.